|
COPYRIGHT 2005 University of Arkansas at Little Rock William H. Bowen School of Law
I. INTRODUCTION
An argument in the Supreme Court is an extraordinary thing. That is literally so for most lawyers: With the Court granting review in only eighty or so cases a year, a Supreme Court argument is likely to be a once-in-a-lifetime event even for most experienced appellate advocates. The rarity of Supreme Court appearances, of course, makes them a sought-after commodity. But because Supreme Court practice is in some significant senses unique--and uniquely challenging--the Court's decision to grant review may be more than gratifying; it also presents a difficult set of problems for lawyers who suddenly find themselves handling their first appearance in the Court.
Lack of familiarity with the Court and its idiosyncrasies can be intimidating. And sometimes it is worse: It can lead to missteps that are embarrassing at best and harmful to a case at worst. The Justices themselves have complained about lawyers who are not ready to function as the "resource" they are looking for, and who are unable to help members of the Court "clarify their own thinking." (1) They have warned against forensic techniques that may play well in other courts but that prompt the Justices to wince, like "table-pounding and other hortatory mannerisms." (2) Indeed, Chief Justice Burger grumbled that "[t]he Supreme Court is no place for inexperienced or ill-prepared advocates; such advocates provide little help to the Court; they do a disservice to their clients--and to themselves." (3)
Fortunately, there are a variety of resources available to assist lawyers with cases in the Supreme Court. Many of these resources, such as the institutions that stage moot courts, are called upon even by the most experienced repeat players in the Court. And these sources of information and advice can prove invaluable for lawyers who are appearing in the Court for the first time. What follows, then, is a brief account of some of the ways in which Supreme Court practice is distinctive, followed by a description of the places lawyers can turn for assistance in preparing for an appearance in the Court--and that can help those with limited Supreme Court experience avoid the kind of argument that produces "an infamous faux pas in the courtroom." (4)
II. UNIQUE ASPECTS OF SUPREME COURT PRACTICE
In the broadest sense, handling a case in the Supreme Court is no different from litigating in any other appellate tribunal. Opening, responsive, and reply briefs are filed. The Court then hears oral argument, in which the advocates follow the same pattern by presenting an opening, response, and reply, and where the Justices have the opportunity to ask questions. The lawyers' goal is to persuade their audience by making convincing arguments and addressing the Justices' concerns, just as they would in any other court.
The familiar forms of the argument, though, should not obscure the ways--some obvious and some subtle--in which an appearance in the Supreme Court is exceptional. Consider, as I have in the discussion that follows, those things that will strike a lawyer handling his or her first case in the Court.
A. Psychological Intimidation
Justice Brennan has been quoted as remarking that "[s]omething about our courtroom scares lawyers...
Read the full article for free courtesy of your local library.
|
Bookmark this article
Print this article
Link to this article
Email this article
Digg It!
Add to del.icio.us
RSS
